1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) has been filed for quashing of the order dated 14.08.2018 summoning the accused-applicant to face the trial, passed in Case Crime No. 515/2014, under Sections 406/420/465/468/471/504/506 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), Police Station Hazratganj, District Lucknow pending in the Court of learned Chief Judicial Magistrate, Lucknow.
2. Heard Shri Siddhartha Sinha, learned counsel for the petitioner/accused, Shri Amit Chaudhary, learned counsel appearing on behalf of the opposite party no. 2 and learned A.G.A. for the State.
3. In short, the facts necessary for disposal of this petition are as follows:-
The opposite party no. 2 -Arun Kumar Gupta lodged a first information report bearing Case Crime No. 515/2014, under Sections 406/420/465/468/471/504/506 IPC, Police Station Hazratganj, District Lucknow against the petitioner/accused Alok Gupta. After investigation, the Investigating Officer submitted charge-sheet against the petitioner/accused in the Court. Learned Chief Judicial Magistrate, Lucknow took cognizance vide order dated 01.12.2014 and summoned the petitioner Alok Gupta to face trial in the above mentioned crime. Being aggrieved by the order of cognizance, the petitioner preferred a petition under Section 482 Cr.P.C. i.e. Criminal Misc. Case No. 2066 of 2015 (Alok Gupta Versus State of U.P and Others) for quashing the order of taking cognizance dated 01.12.2014. This Court quashed the order dated 01.12.2014 vide order dated 23.07.2018 and directed the Chief Judicial Magistrate, Lucknow to pass the order afresh. The relevant part of the order of this Court is quoted below:-
"Under such circumstance, I find that the impugned order suffers from non-application of mind, therefore, the same cannot be sustained. Accordingly, I quash the said order and remit the case to the file of Chief Judicial Magistrate, Lucknow with a direction to re-apprise first information report, charge-sheet and case diary along with all the papers attached with the case diary and then record his satisfaction as to how the offences mentioned in the charge-sheet are prima facie made out against the petitioner then pass the order either accepting or rejecting the charge-sheet. The said order must be passed within one month from the date of production/receipt of certified copy of this order by either of the parties. "
4. In compliance of the above order of this Court, learned Chief Judicial Magistrate, Lucknow passed the impugned order dated 14.08.2018 and summoned the petitioner.
5. This order has been assailed by the petitioner mainly on the ground that learned Chief Judicial Magistrate, Lucknow has not applied its mind and also violated the principle of natural justice. It has been argued by the learned counsel for the petitioner that in the impugned order learned Chief Judicial Magistrate, Lucknow has mentioned that the counsel for the petitioner (accused) was given an opportunity of being heard, however, the fact so mentioned is incorrect and false as petitioner neither moved application nor counsel of the petitioner/accused was heard before passing the impugned order. This is in gross violation of principle of natural justice as the petitioner/accused was not heard and the order was passed mentioning that petitioner/accused-applicant was heard. The petitioner/accused was not heard despite of this Court's order dated 23.07.2018, hence the order dated 14.08.2018 should be quashed.
6. Contrary to it, learned counsel for the opposite party no. 2 (complainant) and learned A.G.A. appearing on behalf of the State submitted that the impugned order is perfectly legal order as far as it relates to taking cognizance. The concerned Magistrate has mentioned in the order about all the relevant documents on the basis of which he has taken cognizance of the case. The mention of the name of the petitioner/accused and the fact of hearing him, written in the order may be wrong due to typographical mistake or otherwise as there is similarity in the names and parentage of parties but that did not cause any prejudice to the petitioner as he had no right to be heard at that stage, i.e. the stage of taking cognizance. The petitioner has adopted all delaying tactics and he has not come with clean hands before this Court. Hence, this petition should be rejected.
7. Considered the submissions of both the sides and perused the material available on record. As far as taking of cognizance is concerned, Section 190 of the Code of Criminal Procedure provides as under:-
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."
This section does not provide to give any opportunity of hearing either to accused or to informant at the time of taking cognizance. It is only satisfaction of the concerned Magistrate, after application of legal mind on the basis of the material placed before him is required for the purpose.
8. In Mahesh Chand And etc Versus State of Rajasthan and etc, AIR 1986 Raj. 58, the Full Bench of Rajasthan High Court in this regard answering the question, "Whether cognizance of offence can be taken in the absence of the accused?" has observed as under:-
"We would first take up the questions which, in our opinion, admit of simple and straight answers. Let us take up question 4 which is : Whether cognizance of an offence can be taken in the absence of the accused? This question must straightway be answered in the affirmative, and we answer it accordingly. A plain reading of Section 190, Cr. P.C. will provide reasons for this opinion. Section 190 deals with cognizance of offences by Magistrates. It lays down that any Magistrate of the first class may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge that such an offence has been committed. It will be seen that the accused is nowhere in the picture in the context of taking cognizance of an offence under Section 190, Cr. P.C. The Magistrate takes cognizance of an offence and not against any particular accused. It may happen, and indeed does happen quite frequently that, when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, he may not even be knowing as to who is the accused who allegedly committed such offence.
It is only after taking cognizance of the offence under Section 190(1)(a) Cr. P.C. that the Magistrate embarks upon the enquiry under Sections 200 and 202, Cr. P.C.; and he may as a result thereof discover as to who is the accused. If he is able to make such discovery, which in the language of the Code means if he is of opinion that, "there is sufficient ground for proceeding", it is only then that he is required under Section 204, to issue process for the attendance of the accused in his Court. If the Magistrate is of opinion that there is no sufficient ground for proceeding, he has no option but to dismiss the complaint upon which he had taken cognizance of the offence before embarking on such enquiry. Thus, Section 190(1)(a), read with Sections 200, 202, 203 and 204, Cr. P.C., leaves no manner of doubt that cognizance of an offence is taken at a stage when the accused is nowhere in the picture before the Magistrate and that therefore there is no question of taking cognizance of the offence in the presence of the accused. In other words, cognizance of an offence is not just a question of "can be", but it "has to be" taken in the absence of the accused.
12. Similarly, if the Magistrate takes cognizance of an offence under Section 190(1)(a), Cr. P.C., he would quite often be doing so obviously in the absence of the accused. We can think of only exceptional cases where it may be possible for the Magistrate to take cognizance of the offence in the presence of the accused. For example, if the accused commits the offence in the presence of the Magistrate and the latter takes cognizance of the offence under Section 190(1)(c) before the accused leaves the scene of the crime it may be said that the Magistrate has taken cognizance of the offence in the presence of the accused. Even the presence of the accused in such a situation would demonstrably show that such presence is happen-chance and not the requirement of law.
13. Even in the case of a Magistrate taking cognizance of the offence upon a police report under Section 190(1)(b), Cr. P.C., such cognizance has quite often to be taken in the absence of the accused if he is not forwarded in custody at the time of presenting the police report. The Magistrate would thus first take cognizance of the offence upon the police report and thereafter issue process for the attendance of the accused. "
9. In Bhushan Kumar and Another Versus State (NCT of Delhi) and Another, AIR (SC) 1747 (2012), the Hon'ble Apex Court in this regard has observed as under:
"In S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492, the expression "cognizance" was explained by this Court as it merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.
8) Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. "
10. Thus, it is settled legal position that at the time of taking cognizance there is no requirement of providing opportunity of hearing to either party. Only satisfaction of the concerned Magistrate is required after application of legal mind.
11. Perusal of the impugned order dated 14.08.2018 denotes that the Magistrate while passing the order of cognizance has mentioned that he has perused the case diary and the statements of the witnesses recorded as well as the documents put forward before him. It clearly reveals that the Magistrate while passing the order of taking cognizance has applied its legal mind. No doubt in the order, it has been mentioned that accused-applicant Alok Kumar Gupta was heard in compliance of the order passed by this Court but in the order of the High Court, there was no direction that the accused-applicant should be given an opportunity of hearing before taking the cognizance as has been argued by the learned counsel for the petitioner/accused. As mentioned above that accused-applicant has no right to be heard at the time of taking cognizance, so no prejudice has been caused to the petitioner/accused.
12. It is to be taken note that in this matter, the first information report was lodged in the year 2014, thereafter Investigating Officer submitted charge-sheet initially on 01.12.2014 cognizance was taken and the accused was summoned to face trial but accused-applicant came to this Court for quashing the order of taking cognizance on the ground of non application of mind and that order was set aside and a fresh order was passed by the Magistrate, which is impugned order and that was again challenged mainly for the reason that name of the petitioner/accused has been mentioned in the cognizance order disclosing that he has been heard while in-fact he was not heard but the rest of the summoning order discloses that learned Chief Judicial Magistrate has perused the material placed before him along with the charge-sheet. A long period has passed after lodging the F.I.R. but the matter is still pending at the initial stage in the Trial Court and petitioner/accused has not surrendered before the Court.
13. During argument it has been disclosed by the learned counsel for the informant/opposite party no. 2 that the petitioner/accused has moved an application before the trial court for discharge and this fact has been admitted by the counsel for the petitioner/accused. There remains the opportunity for the petitioner/accused to argue or make a submission that there is no prima facie material to constitute the offences alleged against the accused.
14. In the light of the aforesaid discussions, there is no justification to interfere under Section 482 Cr.P.C. and to quash the impugned order dated 14.08.2018 passed by the learned Chief Judicial Magistrate, Lucknow.
15. This petition under Section 482 Cr.P.C. is, accordingly, dismissed.
Order Date :- 23.2.2021 Arun